The plaintiff holds exclusive rights to its registered trademark due to continuous use and established goodwill; defendants infringed resulting in confusion and passing off.

[1] The dispute between the parties revolve around the ownership of trademarks and passing off.

[2] The background facts leading to the dispute are well set out in the written submissions of counsel and I have substantially adopted and set them out as follows.

[3] The Plaintiff, Tan Kim Hock Tong Seng Food Industry Sdn Bhd, a private limited company incorporated under the laws of Malaysia was established by its founder Mr Tan Kim Hock ("THK") a self made and very successful businessman.

[4] The Plaintiff's primary business is manufacturing and marketing traditional sweets and savories such as dodol cake ("kuih dodol"), kaya cookies and coconut candies, as well as other local food and health products. All of the Plaintiff's products bear the registered trademark and/or get up of , , , "Tan Kim Hock" and/or "" (hereinafter referred to as "the said Trade Mark").

[5] The antecedent history leading to the incorporation of the Plaintiff in 1975, and the registration and use of these trademarks and get up is as follows. Sometime in the 1950s, TKH and his late wife, Madam Ngow Swee Yam (Mdm Ngow) formulated a special recipe for making kuih dodol, which became a favorite among their village folks then. At that time, TKH and Mdm Ngow would make kuih dodol and distribute them among their relatives and friends, usually during festive seasons. Thereafter, TKH started selling the kuih dodol from house to house in the Malay kampong near Brangan Enam, Umbai, Melaka.

[6] Following this humble beginning, TKH started a small business enterprise under the name of "Tong Seng" which sold the home made kuih dodol at a small stall in front of Yuan Fang Yuan at Jalan Bunga Raya, Melaka. In order to establish a market name and presence, TKH registered the trade mark of "" on 20 February 1967. This first trademark of TKH bore the image of a coconut tree, from which the main ingredients for the kuih dodol and other of his products were derived. The registered proprietor of this first trademark bearing Registration No M/47372 was TKH trading as Tong Seng.

[7] TKH's business developed rapidly and sometime in the early 1970s TKH set up a small outlet named "Syarikat Tong Seng" at No 85, Bendahara, Jalan Bunga Raya, Melaka. Syarikat Tong Seng's business grew exponentially and in 1973 TKH acquired a shop at No 91 Jalan Bendahara, Melaka, for the purpose of manufacturing and selling his products. Following this, TKH started to use "Tong Seng Foodstuff Factory" as the name of his business enterprise. Sometime in 1974, TKH once again changed his business name to "Tan Kim Hock (Chop Tong Seng)" mainly to avoid public confusion and differentiate his products from that of his competitiors who started using similar sounding names to that of Tong Seng. Despite the various changes to the names of his business, TKH maintained the name "Tong Seng" in some form or the other as its Chinese meaning ie "in any direction it must succeed" was considered auspicious.

[8] According to the Plaintiff, the 2nd Defendant, Siah Siu Eng became an employee of TKH sometime in 1973, initially as a dodol wrapper and subsequently became a dodol packing supervisor. The 2nd Defendant on the other hand states that she started working with TKH as a dodol packer sometime in 1970. I will deal with contentious issue later. Suffice to say that the 2nd Defendant started her work with TKH in his business enterprise as a dodol packer sometime in the early 1970s.

[9] The Plaintiff